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ELCAllowedNot stated in the judgment text· [2018] KEELC 2433 (KLR)

Esther Wanjiku Nderitu v Zainab Aboud [2018] KEELC 2433 (KLR)

Environment and Land Court
19 July 2018
CYC. YANO
1,016 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa land court set aside a default judgment because the defendant had a genuine defence, letting her land dispute finally go to a full trial.

What this practically means

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Executive summary

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This was a ruling by C. Yano, J of the Environment and Land Court at Mombasa on a Notice of Motion dated 12th February 2018 by the defendant, Zeinab Aboud, seeking to set aside ex-parte judgment entered against her and to have her defence, list of documents, list of witnesses and witness statements deemed properly filed. The defendant had entered appearance in June 2016 but failed to file a defence within the prescribed time; judgment was regularly obtained and a notice of judgment and formal proof issued in May 2017. The plaintiff opposed, contending the defence was filed out of time and without leave, had no merit, and would prejudice her rights to the suit land. The court applied the settled principles in Patel v East Africa Cargo Handling Services Ltd and Shah v Mbogo, holding that the discretion to set aside ex-parte judgment is wide but exercised on just terms, and that a regularly obtained judgment will not usually be set aside absent a defence on merits raising a triable issue. The defendant's defence alleged she purchased a portion of Plot No.312 Section 1 MN from a member of Bamburi Self Help Group and that the plaintiff fraudulently subdivided the plot while she was in possession - triable issues calling for trial. The court found no demonstrated prejudice to the plaintiff and invoked the overriding objective. The application was allowed: the defence was deemed filed upon payment of requisite fees, to be served within 14 days, with each party bearing their own costs.

Key legal issues

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01

Whether to exercise discretion to set aside regularly obtained interlocutory judgment

Holding

The discretion was exercised in favour of the defendant because sufficient reason was shown and the defence raises triable issues; the plaintiff demonstrated no prejudice

Reasoning

The defendant did not dispute service of summons and entered appearance within time, but failed to file the defence in time, so the judgment was regular. The court applied Patel v East Africa Cargo Handling Services and Shah v Mbogo: the wide discretion is exercised on just terms to do justice between the parties and to avoid injustice from inadvertence or excusable mistake. The defence alleged purchase of a portion of Plot No.312 and fraudulent subdivision while the defendant was in possession, raising triable issues. The overriding objective favoured hearing the suit on the merits.

p. 2

Legal principles established

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  • The court's discretion to set aside ex-parte judgment is wide but must be exercised on just terms; a regularly obtained judgment will not usually be set aside unless there is a defence on merits raising a triable issue

Court orders

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  1. 1.The Application dated 12th February 2018 is allowed
  2. 2.The statement of defence dated 9th March 2017 and filed on 10th March 2017 is deemed duly filed upon payment of the requisite fees
  3. 3.The Defendant is directed to serve the said defence upon the Plaintiff within 14 days from the date of the ruling
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Rules (implied by reference to discretion and filing deadlines)Not specifically cited

Cases cited (2)

  • Patel –v- East Africa Cargo Handling Services Ltd
    (1974) EA 75
  • Shah –V- Mbogo
    (1967) EA 116
Jurisdiction invoked
Inherent discretion of the Court under the civil procedure rules to set aside ex-parte judgment; overriding objective

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Esther Wanjiku Nderitu v Zainab Aboud [2018] KEELC 2433 (KLR)", Case Analysis (2018). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2433/eng@2018-07-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.